Karnataka High Court
Sathyanarayana vs J.N.Venkatesha on 18 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 145 of 2020
C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 145 OF 2020
C/W
CRIMINAL PETITION NO. 155 OF 2020
CRIMINAL PETITION NO. 970 OF 2020
IN CRIMINAL PETITION NO. 145 OF 2020
BETWEEN:
1. SRI. SATHYANARAYANA
S/O LATE KOKKANURU NAGAPPA,
AGED ABOUT 64 YEARS,
2. K.N. RAMACHANDRAPPA
S/O LATE KOKKANURU NAGAPPA
AGED ABOUT 64 YEARS
BOTH ARE RESIDING AT DOOR NO.279/1-2,
17TH CROSS, K.T.J NAGARA, BADAVANE,
DAVANAGERE - 577 001.
...PETITIONERS
(BY SRI. MANJUNATH M., ADVOCATE FOR
SRI. MARUTHI G B., ADVOCATE)
AND:
SRI. J.N. VENKATESHA
Digitally signed
by PADMAVATHI S/O NAGAPPA,
BK MAJOR,
Location: HIGH
COURT OF R/AT DOOR NO.1675/B-2,
KARNATAKA SIDDALINGESHWAR BADAVANE,
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CRL.P No. 145 of 2020
C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020
BEHIND SIDDAGANGA HIGH SCHOOL,
DAVANAGERE - 577 001.
...RESPONDENT
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE ENTIRE PROCEEDINGS IN C.C.NO.2422/2019 (PCR
No.211/2013) PENDING ON THE FILE OF THE JMFC SECOND
COURT AT DAVANAGERE FOR THE OFFENCE PUNISHABLE
UNDER SECTION 420 R/W SEC.34 OF IPC WITH RESPECT OF
THE PETITIONERS.
IN CRIMINAL PETITION NO. 155 OF 2020
BETWEEN:
SMT. NIRUPAMA K.A.
W/O SATHYANARAYANA
AGED ABOUT 46 YEARS
RESIDING AT
DOOR No.279/1-2, 17TH CROSS
K.T.J. NAGARA, BADAVANE
DAVANAGERE - 577 001
....PETITIONER
(BY SRI. MANJUNATH M., ADVOCATE FOR
SRI. MARUTHI G B., ADVOCATE)
AND:
SRI. J.N. VENKATESHA
S/O LATE NAGAPPA,
MAJOR, R/AT DOOR NO.1675/B-2,
SIDDALINGESHWAR BADAVANE,
BEHIND SIDDAGANGA HIGH SCHOOL,
DAVANAGERE - 577 001.
...RESPONDENT
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.2415/2019 (PCR
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CRL.P No. 145 of 2020
C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020
No.212/2013) PENDING ON THE FILE OF THE JMFC SECOND
COURT AT DAVANAGERE FOR THE OFFENCE PUNISHABLE
UNDER SECTION 480 OF IPC WITH RESPECT OF THE
PETITIONER.
IN CRIMINAL PETITION NO.970 OF 2020
BETWEEN:
SMT. NIRUPAMA K.A.
W/O SATHYANARAYANA
AGED ABOUT 46 YEARS
RESIDING AT
DOOR No.279/1-2, 17TH CROSS
K.T.J. NAGARA, BADAVANE
DAVANAGERE - 577 001.
....PETITIONER
(BY SRI. MANJUNATH M., ADVOCATE FOR
SRI. MARUTHI G B., ADVOCATE)
AND:
SRI. J.N. VENKATESHA
S/O LATE NAGAPPA,
MAJOR, R/AT DOOR NO.1675/B-2,
SIDDALINGESHWAR BADAVANE,
BEHIND SIDDAGANGA HIGH SCHOOL,
DAVANAGERE - 577 001.
...RESPONDENT
(BY SRI. HAREESH BHANDARY T., ADVOCATE)
THIS CRL.P IS FILED U/S.482 OF CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.2417/2019 (PCR
No.210/2013) PENDING ON THE FILE OF THE JMFC SECOND
COURT AT DAVANAGERE FOR THE OFFENCE PUNISHABLE
UNDER SECTION 420 OF IPC WITH RESPECT OF THE
PETITIONER MARKED AT ANNEXURE-D.
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CRL.P No. 145 of 2020
C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020
THESE CRL. PETITIONS COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
All these petitions call in question the proceedings in C.C.No.2422/2019, 2415/2013 and 2417/2017 arising out of PCR 211/2013, 212/2013 and 210/2017 respectively for the offences punishable under Section 420 r/w.34 of IPC.
2. Heard learned counsels appearing on both sides.
3. Brief facts that leads the petitioners to this Court in the subject petition are a transaction between the petitioners and the respondent-complainant. It is the case of the complainant that the petitioners had executed the agreement of sale dated 12.10.2012 and 23.3.2013 in favour of the complainant for a sum of Rs.10,00,000/-
(Rupees Ten Lakhs), Rs.6,00,000/- (Rupees Six Lakhs) and Rs.20,00,000/- (Rupees Twenty Lakhs) respectively and the complainant claims to have paid substantial amounts. The agreements of sale remained agreements as no sale deed was executed by the petitioners in favour -5- CRL.P No. 145 of 2020 C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020 of the complainant. This leads the petitioners to file private complaints invoking Section 200 of Cr.P.C. in PCR 211/2013, 212/2013 and 210/2013. The learned Magistrate refers the matter for investigation under Section 156(3) of the Cr.P.C. to the Jurisdictional Police in all the complaints and FIR for offences punishable under Sections 420 read with 34 of the IPC were alleged. The police after investigation file a 'B' report before the concerned Court in all the cases on the score that the matter was purely civil in nature
4. The complainant filed protest petitions and the result of the protest petitions is an order passed by the learned Magistrate dated 29.07.2019 taking cognizance of the offences punishable under Section 420 r/w.34 of IPC and registered a case in CC Nos.2422/2019, 2415/2013 and 2417/2017. It is the order taking cognizance and issuing summons is what drives the petitioners to this Court in the said petition.
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5. Learned counsel appearing for the petitioners would contend that the matter was indeed purely civil in nature and the 'B' report ought to have been accepted by the concerned court and the procedure to be followed in rejecting the 'B' report is given a go bye by the learned Magistrate.
6. The Learned counsel for the respondent would contend that the petitioners have played fraud with the complainant as the agreement to sell entered into between the complainant and the petitioners on 12.10.2012 and 23.3.2013 and the petitioners after receiving the amount have sold the property to some third party and therefore, the said offences are alleged against the petitioner.
7. I have given my anxious consideration to the submissions of the learned counsels and perused the material on record.
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8. The afore narrated facts are not in dispute. The issue is not with regard to the merit of the matter or the respective claims of the petitioners or the complainant.
What merits consideration is the submission of the learned counsel appearing for the petitioners is the order taking cognizance. The order by which the 'B' report is impliedly rejected and cognizance is taken, summons issued, reads as follows :-
"The complainant has filed the present complaint for the offences punishable under section 406, 417, 418, 420, 423, 424 of IPC against the accused persons and the same was referred under 156(3) of Cr.P.C. and police have filed 'B' report after investigation. Thereafter, the complainant has filed the protest petition against 'B' report filed by the police.
My predecessor in office after hearing the complainant took cognizance and proceeded to record the sworn statement of the complainant, this clearly goes to show that 'B' report has been impliedly rejected and cognizance of the alleged offence has been taken. Therefore, now the question before this -8- CRL.P No. 145 of 2020 C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020 court is whether there are grounds to proceed against the accused persons for the alleged offences.
The materials on record viz., complaint, protest petition, sworn statement and documents produced by the complainant are sufficient to make out a prima facie case against the accused No.1 to 3 for the offence punishable under section 420 r/w 34 of IPC. Hence, office is directed to register the criminal case against the accused No.1 to 3 for the offence under 420 r/w 34 of IPC and issue summons to accused No.1 to 3, if P.F. is paid."
9. The order taking cognizance (supra) runs foul of the judgment rendered by the Co-ordinate Bench of this Court in Dr. Ravikumar v. Mrs. K.M.C. Vasantha and Another reported in ILR 2018 KAR 1725 wherein the Co-
ordinate Bench of this Court has delineated the principles as to how the learned Magistrate before whom the 'B' report of filed should pass orders on the 'B' report prior to the issuance of summons. The Bench holds as follows :
-9- CRL.P No. 145 of 2020C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020 "5. The procedure followed by the learned Magistrate is not in accordance with law. It is well recognized principle of law that, once the police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of 'B' Summary Report so as to ascertain whether the police have done investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-
i) The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.p.c, but before taking cognizance such exercise has to be done.
This my view is supported by the decisions of the Hon'ble Apex Court in a decision reported in between ABHINANDAN JHA AND DINESH MISHRA (AIR 1968 SC
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CRL.P No. 145 of 2020C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020
117) (para 15) and also Full Bench decision of Apex Court reported in between KAMALAPATI TRIVEDI AND STATE OF WEST BENGAL (1980) SCC 91 (second head note.)
ii) If the court is of the opinion that the material available in the 'B' Summary Report makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.
iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition
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CRL.P No. 145 of 2020C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020 as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if any on the side of the complainant as per the mandate of Sec.200 Cr.P.C.
v) If the court is of the opinion that the materials collected by the police in the report submitted under section 173 of Cr.p.c. are not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under section 190 read with 200 Cr.p.c. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the
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CRL.P No. 145 of 2020C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020 complainant/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct the investigation under section 202 of Cr.p.c., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under Section 156(3) of Cr.p.c, once the magistrate takes cognizance and starts inquiring into the matter himself.
vi) After taking such report under section 202 of Cr.P.C., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s.203 of Cr.P.C. as the case may be.
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CRL.P No. 145 of 2020C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020
vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s.204 of Cr.P.C.."
10. If the order taking cognizance and impliedly rejecting the 'B' report is considered on the touch stone of the principles laid down by the judgment rendered by the Co ordinate Bench of this Court in Dr.Ravikumar (supra), it would on the face of it run foul, as a consequence thereof, the learned Magistrate will have to re-consider the issue from the stage of the consideration of the 'B' report, the protest petition and then pass appropriate order bearing in mind the principles laid down by the Co ordinate bench in the case of Dr.Ravikumar (supra).
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CRL.P No. 145 of 2020C/W CRL.P No. 155 of 2020, CRL.P No. 970 of 2020
11. For the aforesaid reasons, I pass the following order :
ORDER
i) The petitions are partly allowed;
ii) The order taking cognizance dated 29.7.2019 stands quashed.
iii) Matter is remitted back to the hands of the learned Magistrate to pass appropriate orders on 'B' report and regulate its further proceedings bearing in mind the observations made in the course of the order and the judgment in the case of Dr.Ravikumar.
Ordered accordingly.
Sd/-
JUDGE rs